Plaintiff,
Robert Durchslag, brings this action against the United
States of America and individually named defendants Catherine
Linaweaver, Bonnie Nowakowski, Greg Fearday, Ndife, and
Kruger, asserting claims under the Federal Tort Claims Act, a
Bivens action, and intentional infliction of
emotional distress. The United States now moves this Court to
dismiss Durchslag's Federal Tort Claims Act claim, which
constitutes the sole count naming the United States as a
defendant. For the reasons set forth herein, that motion is
granted.

Background

The
following allegations taken from the plaintiff's amended
complaint are accepted as true for the purpose of ruling on
this motion. Durschlag was a pre-trial detainee who was in
custody at the Metropolitan Correctional Center in Chicago
(“MCC”) from August 29, 2012 until July 11, 2016.
Durchslag suffers from an autoimmune condition that, prior to
his arrest, was being treated by the Northwestern Memorial
Hospital and Northwestern Medical Group
(“Northwestern”).

In late
2012, Durchslag began to notice that his vision was
deteriorating. On December 10, 2012, Durchslag saw an
ophthalmologist at Thorek Hospital regarding his vision.
Durchslag was ordered to wear dark tinted glasses at all
times in order to prevent continuing damage to his eyes and
was ordered to be seen by specialists at Northwestern's
Eye Clinic. Following that appointment, however, MCC staff
did not provide Durchslag with the requisite glasses or
permit him to seek treatment with Northwerstern's Eye
Clinic, notwithstanding his complaints to MCC personnel
including Nowakowski, Fearday, and Kruger. On February 17,
2013, Durchslag's criminal defense attorney filed a
motion regarding Durchslag's medical needs, and the MCC
agreed to transport Durchslag out of the facility for medical
treatment. On February 18, 2013, Durchslag was returned to
Thorek hospital, where the same ophthalmologist examined
Durchslag and noted that his prior order had not been
followed. Durchslag was subsequently allowed to wear dark
tinted glasses at the MCC, although he has made numerous
complaints to MCC staff regarding the fit and effectiveness
of the provided glasses. On May 8 and again on June 11, 2013,
Durchslag was examined at Northwestern. At that time,
Durchslag's vision had deteriorated such that he could no
longer read. On December 4, 2013, Durchslag was recognized as
“an individual with a disability” by the State of
Illinois and began receiving counseling and guidance
regarding his vision loss.

On
December 5, 2013, Durchslag was examined at Northwestern and
instructed to follow up with a specific neuro-ophthalmologist
at Northwestern in one week. Between December 5, 2013 and
October 22, 2015, Durchslag was not seen by any
ophthalmologist or neuro-ophthalmologist, including the one
to which he had been previously referred. On October 22,
2015, he was seen by various doctors at the University of
Illinois Hospital and Health Sciences System in Chicago
(“UIC”), where he was informed that his vision
had worsened. He was seen at UIC again on November 11, 2015,
at which time it was determined that he was completely blind
and unlikely to recover any of his vision. Lab results
indicated that Durchslag was positive for multiple
anti-retinal autoantibodies, signaling the presence of
autoimmune retinopathy and cancer-associated retinopathy.
Durchslag was re-assessed at UIC on February 16, 2016, at
which time additional testing was recommended. That testing
did not occur prior to Durchslag's release on July 11,
2016.

On
December 28, 2015, Durchslag presented his administrative
claim to the Bureau of Prisons. Following the denial of that
claim Durchslag brought the present action.

Legal
Standard

A
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the complaint, not
the merits of the allegations. The allegations must contain
sufficient factual material to raise a plausible right to
relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Although Rule 8 does not require a plaintiff to plead
particularized facts, the complaint must allege factual
“allegations that raise a right to relief above the
speculative level.” Arnett v. Webster, 658
F.3d 742, 751-52 (7th Cir. 2011). Put differently, Rule 8
“does not require ‘detailed factual allegations,
' but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009), see also Fed. R. Civ.
P. 8(a). When ruling on a motion to dismiss, the Court must
accept all well-pleaded factual allegations in the complaint
as true and draw all reasonable inferences in the
plaintiff's favor. Park v. Ind. Univ. Sch. of
Dentistry, 692 F.3d 828, 830 (7th Cir. 2012).

Discussion

The
United States contends that Durchslag's Federal Tort
Claims Act (FTCA) claim is untimely. The FTCA requires that a
plaintiff file an administrative claim with the appropriate
agency before filing suit in federal court. 28 U.S.C. §
2675(a). A tort claim against the United States must be
presented to the administrative agency within two years
“after such claim accrues” or it will be
“forever barred.” 28 U.S.C. § 2401(b). In a
medical negligence case, a plaintiff's claim accrues once
the plaintiff knows or should have known that he has an
injury and who caused that injury. United States v.
Kubrick, 444 U.S. 111, 121-123, 100 S.Ct. 352, 62
L.Ed.2d 259 (1979).

Here,
it is undisputed that Durchslag filed his administrative
claim with the Bureau of Prisons on December 28, 2015. Thus,
Durchslag's claim is time barred if it accrued any
earlier than December 28, 2013. Here, the government contends
that Durchslag was aware of his vision loss as early as
December 10, 2012 or, if not then, during the course of his
medical appointments prior to December 4, 2013. If nothing
else, the government contends, Durchslag was aware of his
injury by December 4, 2013, when he was declared legally
disabled due to his vision loss.

Durchslag,
in response, argues that it was not until November 2015 that
he learned that he may have cancer-associated retinopathy, a
potential cause of his lack of visual function. This,
Durchslag contends, is when he discovered that the
defendant's failure to follow up on his testing might
have led to missed opportunities for treatment for his vision
loss and his complete and permanent blindness.

As a
general matter, this Court agrees with the government that
claims arising from its conduct prior to December 4, 2013
accrued, at latest, on that same date. At that time,
Durchslag received a clear indication that he had been
injured-the declaration of his disability-and he knew or
should have known that the government's failures to
timely provide treatment or to comply with doctors'
orders were to blame. Durchslag's claims may not be
completely time-barred, however. Durschlag has alleged that
on December 5, 2013 he was ordered to follow up with a
neuro-ophthalmologist, and that this did not happen. He has
also alleged that his condition subsequently worsened until
November 11, 2015, at which time he was informed that he was
completely blind and unlikely to recover any of his vision. A
claim arising from the MCC's failure to comply with the
doctor's order of December 5, 2013 therefore would not
...

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